dismissed EB-2 Case: Engineering

(b)(6)
.f 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
· 20 Massachusens Ave ., N.W .. MS 20'l0 
Washingto~ •. DC 20.'i29-2090 
U.S. Citizenship 
and Immigration 
Services 
Date: MAR 0 8 2013 Office: NEBRASKA SERVICE CENTER FILE: 
IN RE: Petitioner: .. 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(11)(2) of the Immigration and 
- ' Nationality Act, 8 U.S.C. § l153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Endosed please find I he decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have heen returned to the office that originally decided your case. Please he advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-2908, Notice of Appeal or Motion, with a fcc of $630. Till: 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not tile ,any motion 
directly with the 
AAO. Please he aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to he filed within 
30 days of the decisioQthat the motion seeks to reconsider or reopen. 
~~ 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center, 
and is now before the Administrative Appeals Office (AAO) on appeal. The app~al will he 
dismissed. / 
The petitioner is a manufacturer of ball and roller bearings. It seeks to employ the beneficiary 
permanently in the United States as an applications engineer-off highway. As required hy statute , 
the petition is accompanied by an ETA Form 9089, Application for Permanent Employment 
Certification, approved by the United States Department of Labor (DOL). Upon reviewing the 
petition, the director determined that the beneficiary did not satisfy the minimum level of education 
stated on the labor certification or as required by the advanced degree professional classification. 
The director denied the petition accordingly. 
The record shows that the appeal is properly filed, timely and makes a specific allegation of error in 
law or fact. The procedural history in this case is documented by the record and incorporated into 
the decision. Further elaboration of the procedural history will b'e made only as necessary. 
As set forth in the director's May 29, 2012 denial, the single issue in this case is whether · the 
beneficiary possessed the minimum level 'of education 'stated on the labor certification and as 
required by the advanced degree professional visa category. 
In pertinent part, section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 
1153(b )(2), provides immigrant classification to members of the professions holding advanced 
degrees or their equivalent and whose services are sought by an employer in the United States. An 
advanced degree is a United States academic or professional degree or a foreign equivalent degree 
above the baccalaureate level. 8 C.F.R. § 204.5(k)(2). The regulation further states: "A United 
States baccalaureate degree or a foreign equivalent degree followed by at least five years of 
progressive experience in the ,specialty shall be considered the equivalent of a master's degree. If a 
doctoral degree is customarily required by the specialty, the alien must have a United States 
doctorate or a foreign equivalent degree." /d. 
The AAO conducts appellate review on a de novo basis. See Sultane v. DOJ, 381 F.3d 143, 145 (3d 
Cir. 2004). The AAO considers all pertinent evidence in the record, including new evidence 
properly submitted upon appeal. 1 
As noted above, the ETA Form 9089 in this matter is certified by the DOL. The DOL"s role is limited 
to determining whether there are sufficient workers who are able, willing, qualified and available and 
whether the employment of the alien will adversely affect .the wages and working conditions of workers 
in the United States similarly employed. · Section 212(a)(5)(A)(i) of the Act; 20 C.F.R. § 656.1(a). 
1 The submission of additional evidence on appeal is allowed by the instructions to the Form 1-2908, 
which are incorporated into the regulations at 8 C.F.R. § 103.2(a)(l). The record in the instant case 
provides no reason to preclude consideration of any of the documents newly submitted on appeal. 
See Maller of Soriano, 19 I&N Dec. 764 (BIA 1988). 
(b)(6)
.J 
Page 3 
It is significant that none of the above inquiries assigned to the DOL, or the remaining regulations 
implementing these duties under 20 C.F.R. § 656, involve a determination as to whether or not the alien 
is qualified for a specific immigrant classifiCation or even the job offered. This fact has not gone 
unnoticed-by federal circuit courts. See Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F. 2d 
13q5, 1309 (9th Cir. 1984); Madany v. Smith, 696 .f.2d 1008, 1012-1013 (D.C. Cir. 1983). 
A United States baccalaureate degree is generally found to require four years ofeducation. Maller 
of Shah, 17 l&N Dec. 244 (Reg'l. Comm'r. 1977). This decision involved a petition filed under 
8 U.S.C. §1153(a)(3) as amended in; 1976. At that time, this section provided: 
Visas shall next be made available ... to qualified immigrants who are members of 
the professions .... 
The Act added section 203(b)(2)(A) of the Act, 8 U.S.C. §1153(b)(2)(A), which provides: 
Visas shall be made available ... to qualified immigrants who are members of the 
professions holding advanced degrees or their equivalent .... 
Significantly, the statutory language used prior to Matter of Shah, 17 I&N Dec. at 244; is identical to 
the statutory language used subsequent to that decision but for the requirement that the immigrant 
hold an advanced degree or its equivalent. The Joint Explanatory Statement of the Committee of 
Conference, published as part of the House of Representatives Conference Report on the Act, 
provides that "[in] considering equivalency in category 2 advanced degrees, it is anticipated that the 
alien must have a bachelor's degree with at least five years progressive experience in the 
professions." H.R. Conf. Rep. No. 955, IOlst Cong., 2"d Sess. 1990, 1990 U.S.C.C.A.N. 6784, 1990 
WL 201613 at *6786 (Oct. 26, 1990). 
At the time of enactment of section 203(b )(2) of the Act in 1990, it had been almost thirteen years 
since Matter of Shah was issued. Congress is presumed to have intended a four -year degree when it 
stated that an alien "must have a bachelor's degree" when considering equivalency for second 
preference immigrant visas. We must assume that Congress was aware of the agency's previous 
treatment of a "bachelor's degree" under the Act when the new classification was enacted and did 
not intend to alter the agency's interpretation of that term. See Lorillard v. Pons, 434 U.S. 575, 580-
81 (1978) (Congress is presumed to be aware of administrative and judicial interpretations where it 
adopts a new law incorporating sections of a prior law). See also 56 Fed. Reg. 60897, 60900 (Nov. 
29, 1991) (an alien must have at least a bachelor's degree). 
In 1991, when the final rule for 8 C.F.R. § 204.5 was published in the Federal Register, the 
Immigration and Naturalization Service (the Service), responded to criticism that the regulation 
required an alien to have a bachelor's degree as a minimum and that the regulation did not allow for 
the substitution of experience for education. After reviewing section 121 of the Immigration Act of 
1990, Pub. L. 101-649 (1990), and the Joint Explanatory Statement of the Committee of Conference, 
(b)(6)
Page 4 
the Service specifically noted that both the Act and the legislative history indicate that an alien must 
have at least a bachelor's degree: 
The Act states that, in order to qualify under the second classification, alien members 
of the professions must hold "advanced degrees or their equivalent." As the 
legislative history ... indicates, the equivalent of an advanced degree is "a bachelor's 
degree with at least five years progressive experience in the professions." Because 
neither the Act nor its legislative history indicates that bachelor's or advanced degrees 
must be United States degrees, the Service will recognize foreign equivalent degrees. 
But both the Act and its legislative history make clear that, in order 'to qualify as a 
professional under the third classification or to have experience equating to an 
advanced degree under the second, an alien must have at/east a hache/or ·s degree. 
56 Fed. Reg. 60897, 60900 (Nov. 29, 1991) (emphasis added). 
There is no·provision in the statute or the regulations that would allow a beneficiary to qualify under 
section 203(b){2) of the Act as a memb~r of the professions holding an advanced degree with 
anything less than a full baccalaureate degree {plus the requisite five years of progressive experience 
in the specialty). More specifically, a three-year bachelor's degree will not be considered to be the 
"foreign equivalent degree" to a United States baccalaureate degree . Matter of Shah, 17 l&N Dec. at 
245.' Where the analysis of the beneficiary's credentials relies on work experience alone or a 
combination of multiple lesser degrees, the result is the "equivalent" of a bachelor's degree rather 
than a "foreign equivalent degree." 2 In order to have experience and education equating to an 
advanced degree under section 203(b){2) of the Act, the beneficiary must have a single degree that is 
the "foreign equivalent degree" to a United States baccalaureate degree (plus the requisite tive years 
of progressive experience in the specialty). 8 C.F.R. §' 204.5(k)(2). 
For this classification, advanced degree professional, the regulation at 8 C.F.R. § 204.5(k)(3)(i)(B) 
requires the submission of an "official academic record showing that the alien has a United States 
baccalaureate degree or a foreign equivalent degree" (plus evidence of five years of progressive 
experience in the specialty). For classification as a member of the professions, the regulation at H 
C.F.R. § 204.5(1)(3 )(ii)(C) requires the submission of "an official college or university record 
showing the date the baccalaureate degree was awarded and the area of concentration of study." We 
cannot conclude that the evidence required to demonstrate that an alien is an advanced degree 
professional is any less than the evidence required to show that the alien is a professional. To do so 
would undermine the congressionally mandated classification scheme by allowing a lesser 
evidentiary standard for the more restrictive visa classification. Moreover, the commentary 
accompanying the proposed advanced degree profe~sional regulation specifically states that a 
"baccalaureate means a bachelor's degree received from a college or university, or an equivalent 
2 Compare 8 C.F.R. § 214.2{h)(4)(iii)(D)(5) (defining for purposes of a nonimmigrant visa 
classification, the "equivalence to completion of a college degree" as including, in certain cases, a 
specific combination of education and experience). The regulations pertaining to the Immigrant 
classification sought in this matter do not contain similar language. 
(b)(6)
Page 5 
degree." (Emphasis added.) 56 Fed. Reg. 30703, 30306 (July 5, 1991 ). Compare 8 C.F.R. 
§ 204.5(k)(3)(ii)(A) (relating to aliens of exceptional ability requiring the submission of "an official 
academic record showing that the alien has a degree, diploma, certificate or similar award from a 
college, university, school or other institution of learning relating to the area of exceptional ability"). 
The required education, training, experience, and special requirements for the offered position are set 
forth at Part H of -the ETA Form. 9089. Here, Part H shows that the position requires a master's 
degree, or foreign educational equivalent, in mechanical engineering and 24 months of experience in 
product development engineering or a closely related field. Part H-8 asks the employer if there is an 
alternate combination of education and experience that is acceptable. The petitioner answered this 
question "no." Therefore, the minimum education required by the labor certification is a master's 
degree or foreign educational equivalent. The petitioner did not permit a bachelor's degree plus five 
years of experience as an alternative combination of education and experience. USCIS may not 
ignore a term on a labor certification, nor may it impose additional requirements. See, e.g .. Madany, 
696 F.2d 1008. 
The beneficiary set forth his credentials on the labor certification· and signed his name, under a 
declaration that the contents of the form are true and correct uhder the penalty of perjury. On the section 
of the labor certification eliciting information of the beneficiary's education, and elsewhere 111 the 
record, he states that he received a Diploma de lnginer degree from the 111 
Romania. 
The record contains the following educational evaluations of the beneficiary's credentials : 
• An evaluation from . The evaluation is dated April 2, 2012. The 
evaluation is signed by The evaluation describes the beneficiary's 
five-year Diploma de Inginer degree as being the equivalent of a combined U.S. 
Bachelor of Science and Master of Science degree in mechanical engineering. 
• An evaluation from The evaluation is dated October 3, 
2006. The evaluation is signed by _ The evaluation describes the 
beneficiary's Diploma de Inginer degree as being the equivalent of a U.S. Master of 
Science degree in mechanical engineering. 
USCIS may, in its discretion, use as advisory opinions statements submitted as expert testimony . 
See Matter of Caron International, 19 I&N Dec. 791, 795 (Commr. 1988). However, USClS is 
ultimately responsible for making the final determination regarding an alien's eligibility for the 
benefit sought. /d. The submission of letters from experts supporting the petition is not presumptive 
evidence of eligibility. USCIS may evaluate the content of the letters as to whether they support the 
alien's eligibility. See id. USCIS may give less weight to an opinion that is not corroborated, in 
accord with other information or is in any way questionable. /d. at 795. See also Matter 'of Soffici, 
22 I&N Dec. 158, 165 (Commr. 1998) (citing Matter of Treasure Craft of California, 14 l&N Dec. 
190 (Reg. Commr. 1972)); Matter of D-R-, 25 I&N Dec. 445 (BIA 2011)(expert witness testimony 
(b)(6).. 
Page 6 
may be given different weight depending on the extent of the expert's qualifications or the relevance, 
reliability, and probative value of the testimony). 
The evaluations are not persuasive in establishing that the beneficiary's education from Romania is 
equivalent to a U.S. master's degree. The only evaluation which attempts to compare the 
beneficiary's education in Romania to a U.S. master's degree program is the evaluation, but 
the rationale behind these credit assignments is not substantiated. For example, if the ratio of hours 
spent studying outside the'"'classroom is different in the Romania and U.S. systems, comparing hours 
spent in the classroom would be misleading. The evaluation also asserts that the beneticiary's 
integrated five-year bachelor's and master's degree program totaled 178 credits. Since the typical 
U.S. master's degree program requires 150 credit hours for graduation, the evaluation concludes that 
a program of study with 178 credits is equivalent to a U.S. master's degree. However, 
provides no explanation for how the individual course credit numbers were determined. Although 
notes the existence of integrated bachelor and master programs in engineering in the U.S., he 
does not compare the beneficiary's education to these programs. Finally, none .of the evaluations is 
peer-reviewed or relies on peer-reviewed materials in reaching their unsubstantiated conclusions. 
Accordingly, in this matter, the AAO, similar to the Nebraska Service Center, will prefer the peer­
reviewed information provided by EDGE on the equivalency of the beneficiary ' s foreign education 
to a U.S. master's degree. 
EDGE was created by the American Association of Collegiate Registrars and Admissions Officers 
J (AACRAO). According to its website, www.aacrao.org, AACRAO is "a nonprofit, voluntary, 
professional association of more than 11,000 higher education admissions and registration 
professionals who represent approximately 2,600 institutions and agencies in the United States and 
in over 40 countries." See http://www.aacrao.org/About-AACRAO.aspx (accessed February 6, 2013 
and incorporated into the record of proceeding). Its mission "is to provide professional 
development, guidelines and voluntary standards to be used by higher education officials regarding 
the best practices in records management, admissions, enrollment management, administrative 
information technology and student services." /d. In Confluence Intern., Inc. v. Holder, 2009 WL 
825793 (D. Minn. March 27, 2009), a federal district court determined that the AAO provided a rational 
explanation for its reliance on information provided by A?\CRAO to support its decision. 
According to the login page, EDGE is "a web-based resource for the evaluation of foreign 
educational credentials" that is continually updated and revised by staff and members ot AACRAO. 
Director of International Education Services, "AACRAO EDGE Login," 
http://aacraoedge.aacrao.org/index.php (accessed February 6, 2013 and incorporated into the record 
of proceeding). In Tiseo Group, Inc. v. Napolitano, 2010 WL 3464314 (E.D.Mich. August 30, 
2010), a federal district court found that USCIS had properly weighed the evaluations submitted and 
the information obtained from EDGE to conclude that the alien's three-year foreign "baccalaureate" 
and foreign "Master's" . degree were comparable to a U.S. bachelor's degree. In Sunshine Rehah 
Services, Inc., 2010 WL- 3325442 ·(E.D.Mich. August 20, 2010), a federal district court upheld a 
USCIS conclusion that the alien's three-year bachelor's degree was not a foreign equivalent degree 
to a U.S. bachelor's degree. Specifically, the court concluded that USCIS was entitled to prefer the 
information in EDGE and did not abuse its discretion in reaching its conclusion. The court also 
(b)(6)
Page 7 
noted that the labor certification itself required a degree and did not allow for the combination of 
education and experience. The reasoning in these decisions is persuasive. 
In the section .related to the Romania educational ; system 1 EDGE provides that a diploma de inginc 
degree "represents attainment of a level of education comparable to a bachelor's degree in the United 
States." '-
Based on the juried opinion of EDGE, the AAO has concluded that the beneficiary's education is 
more likely than not comparable to a bachelor's degree in the United States. It appears to be, more 
likely than not, a .first professional degree in engineering, which in the U.S. is also a bachelor's 
degree. Since the ETA Form 9089 required a master's degree as the minimum level of education, the 
petitioner has failed to establish that the beneficiary possessed all the education, training, and 
experience specified on the labor certification as of the priority date. 8 C.F.R. § 103.2(b)(l), (12). See , 
Matter of Wing's Tea House, 16 I&N Dec. at 159; see also Matter of Katigbak, 14 I. & N. Dec. 45, 
49 (Reg. Corum. 1971). T;herefore, the· beneficiary does not meet the job requirements on the labor 
certification. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. § 1361. The petitioner has not met that burden. 
I 
ORDER: The appeal is ~ismissed.